Reviewed by Jacob W. Fendley
Key Takeaways
- Simple possession is a Class A misdemeanor, not a felony.
- Felony exposure attaches to intent to sell, not to the substance itself.
You must understand that, in the state of Tennessee, it is considered illegal to possess a controlled substance without a valid prescription. This is especially true if it is found that you had an intent to manufacture, deliver, or sell this controlled substance, as well. Therefore, it is best not to get caught up in a situation like this with local law enforcement. But if you unfortunately do, then please follow along to find out how you might be punished for possession of controlled substances and how one of the proficient Clarksville drug crime lawyers at Fendley and Birch can help you defend against such crippling allegations and convictions.
Simple Possession and Possession With Intent Are Different Offenses
Ultimately, simple possession and possession with intent are two very distinct charges, and which charge you are facing is the single most important thing to understand.
- Simple possession: Under TN Code § 39-17-418, this is charged when you have substances on your person meant for your own use. A first offense is considered a Class A misdemeanor. As such, you face the potential of 11 months and 29 days behind bars, as well as a fine of up to $2,500.
- Possession with intent: Under TN Code § 39-17-417, manufacturing, delivering, selling, or possessing a controlled substance with intent to do any of those things is a felony. The penalty tiers you can face can be found below.
As such, if you are found with a small amount of controlled substance on your person for personal use and there is nothing to suggest you intended to distribute, you will face a misdemeanor offense. The felony exposure is determined based on intent, not on the actual substance in your possession.
Two Exceptions Worth Knowing on Simple Possession
- Under § 39-17-418(e), a third or subsequent conviction for simple possession involving heroin will warrant a Class E felony.
- Under § 39-17-418(c)(2)(A), simple possession for any amount of methamphetamine will warrant a mandatory minimum of 30 days in jail, to be served in full.
How Does the Drug Enforcement Administration Categorize Controlled Substances?
Importantly, the United States Drug Enforcement Administration (DEA) has an established categorization of controlled substances. Essentially, the placement into these categories primarily depends on the controlled substance’s medical use, potential for abuse, and safety or dependence liability. They read as follows:
- Schedule I substances:
- Heroin.
- Lysergic acid diethylamide (LSD).
- Methylenedioxymethamphetamine (ecstasy).
- Schedule II substances:
- Cocaine.
- Methamphetamine.
- Fentanyl.
- Schedule III substances:
- Ketamine.
- Anabolic steroids.
- Testosterone.
- Schedule IV substances:
- Schedule V substances:
- Motofen.
- Lyrica.
- Parepectolin.
Tennessee adds two schedules that the federal system does not utilize. Schedule VI includes marijuana and hashish, while Schedule VII includes butyl nitrite. As such, both carry their own penalties under § 39-17-417.
It is worth adding that a controlled substance need not be mentioned above to have the potential for criminal prosecution, as this is just an abbreviated list. So please, we urge you to think twice before you obtain a certain drug without first obtaining a valid prescription for it.
Felony Penalties for Manufacturing, Selling, or Possessing With Intent
The tiers below are determined by § 39-17-417 and are applicable to conduct under subsection (a), not to simple possession. However, it’s important to note that the fines established are much higher than the general felony schedule suggests, as this statute establishes its own fines.
- Schedule I: Class B felony, carries the potential of eight to thirty years behind bars and potential fines of up to $100,000
- Cocaine, methamphetamine, or fentanyl at 0.5 grams or more: Class B felony, eight to 30 years, fine up to $100,000
- Any other Schedule II substance, including those same drugs below 0.5 grams: Class C felony, three to 15 years, fine up to $100,000. This rises to a Class B felony if you carried or used a deadly weapon during the offense, or if the offense caused death or bodily injury
- Schedule III: Class D felony, two to 12 years, fine up to $50,000
- Schedule IV: Class D felony, fine up to $50,000, except flunitrazepam, which is a Class C felony with a fine up to $100,000
- Schedule V: Class E felony, carries the potential for one to six years behind bars and potential fines of up to $5,000.
- Schedule VI (marijuana), half an ounce to 10 pounds: Class E felony, carries a fine of up to $5,000
- Schedule VII: Class E felony, carries a fine of up to $1,000
Weight Thresholds That Escalate the Charge
Quantity can escalate an offense, regardless of its schedule. Under § 39-17-417(i), the offense will become a Class B felony, with a fine of up to $200,000, at thresholds including:
- 15 grams of heroin
- 5 grams of LSD
- 26 grams of cocaine
- 26 grams of methamphetamine
- 15 grams of fentanyl
Under § 39-17-417(j), it is considered a Class A felony with fines of up to $500,000 at:
- 150 grams of heroin
- 50 grams of LSD
- 300 grams of cocaine
- 300 grams of methamphetamine
Enhancements and Mandatory Minimums
- Under § 39-17-417(k)(1), a possession with intent will be punished a full classification higher if the recipient or intended recipient is under 18
- Under § 39-17-417(n)(1), manufacturing any amount of methamphetamine warrants a mandatory minimum of 180 days served in full, though § 39-17-417(n)(2) allows credit toward the minimum for participation in a certified drug or recovery court
- Under § 39-17-417(l)(3), a defendant with at least three previous Class A or Class B felony convictions under this statute may be sentenced as a habitual drug offender, which means one range higher, with a fine of up to $200,000
Contact an Experienced Criminal Defense Attorney Today
If you have gotten this far, we now ask you to reach out to one of our talented Montgomery County criminal defense lawyers to schedule an initial consultation. Overall, we strongly encourage you to retain legal representation from Fendley & Birch for your upcoming criminal defense proceedings. Contact us today to learn how we can assist you during these difficult times.
